Below is insightful article about the Verizon vs FCC case that is being heard in the DC Circuit Court – the second-most powerful court in the US, behind the Supreme Court. If Verizon wins their lawsuit then we will likely see the end of a free and open internet, as we know it today…

Net neutrality is a dead man walking. The execution date isn’t set, but it could be days, or months (at best). And since net neutrality is the principle forbidding huge telecommunications companies from treating users, websites, or apps differently — say, by letting some work better than others over their pipes — the dead man walking isn’t some abstract or far-removed principle just for wonks: It affects the internet as we all know it.

Once upon a time, companies like AT&T, Comcast, Verizon, and others declared a war on the internet’s foundational principle: that its networks should be “neutral” and users don’t need anyone’s permission to invent, create, communicate, broadcast, or share online. The neutral and level playing field provided by permissionless innovation has empowered all of us with the freedom to express ourselves and innovate online without having to seek the permission of a remote telecom executive.

But today, that freedom won’t survive much longer if a federal court — the second most powerful court in the nation behind the Supreme Court, the DC Circuit — is set to strike down the nation’s net neutrality law, a rule adopted by the Federal Communications Commission in 2010. Some will claim the new solution “splits the baby” in a way that somehow doesn’t kill net neutrality and so we should be grateful. But make no mistake: Despite eight years of public and political activism by multitudes fighting for freedom on the internet, a court decision may soon take it away.

Game of Loopholes and Rules
How did we get here?

The CEO of AT&T told an interviewer back in 2005 that he wanted to introduce a new business model to the internet: charging companies like Google and Yahoo! to reliably reach internet users on the AT&T network. Keep in mind that users already pay to access the internet and that Google and Yahoo! already pay other telecom companies — often called backbone providers — to connect to these internet users. [Disclosure: I have done legal work for several companies supporting network neutrality, including Google.]

But AT&T wanted to add an additional toll, beyond what it already made from the internet. Shortly after that, a Verizon executive voiced agreement, hoping to end what he called tech companies’ “free lunch”. It turns out that around the same time, Comcast had begun secretly trialing services to block some of the web’s most popular applications that could pose a competitive threat to Comcast, such as BitTorrent.

Yet the phone and cable companies tried to dress up their plans as a false compromise. Counterintuitively, they supported telecommunications legislation in 2006 that would authorize the FCC to stop phone and cable companies from blocking websites.

There was a catch, however. The bills included an exception that swallowed the rule: the FCC would be unable to stop cable and phone companies from taxing innovators or providing worse service to some sites and better service to others. Since we know internet users tend to quit using a website or application if it loads even just a few seconds slower than a competitor’s version, this no-blocking rule would essentially have enabled the phone and cable companies to discriminate by picking website/app/platform winners and losers. (Congress would merely enact the loophole. Think of it as a safe harbor for discriminating online.)

Luckily, consumer groups, technology companies, political leaders, and American citizens saw through the nonsense and rallied around a principle to preserve the internet’s openness. They advocated for one simple, necessary rule — a nondiscrimination principle that became known as “network neutrality”. This principle would forbid phone and cable companies not only from blocking — but also from discriminating between or entering in special business deals to the benefit of — some sites over others.

Unfortunately, the FCC decision that included the nondiscrimination rule still had major loopholes — especially when it came to mobile networks.
Both sides battled out the issues before Congress, federal agencies, and in several senate and presidential campaigns over the next five years. These fights culminated in the 2010 FCC decision that included the nondiscrimination rule.

Unfortunately, the rule still had major loopholes — especially when it came to mobile networks. It also was built, to some extent, on a shaky political foundation because the then-FCC chairman repeatedly folded when facing pressure. Still, the adopted rule was better than nothing, and it was a major advance over AT&T’s opening bid in 2005 of a no-blocking rule.

As a result, Verizon took the FCC to court to void the 2010 FCC rule. Verizon went to court to attack the part of the rule forbidding them from discriminating among websites and applications; from setting up — on what we once called the information superhighway — the equivalents of tollbooths, fast lanes, and dirt roads.

There and Back Again
So that’s where we are today — waiting for the second most powerful court in the nation, the DC Circuit, to rule in Verizon’s case. During the case’s oral argument, back in early September, corporate lobbyists, lawyers, financial analysts, and consumer advocates packed into the courtroom: some sitting, some standing, some relegated to an overflow room.

Since then, everyone interested in internet freedom has been waiting for an opinion — including everyday folks who search the web or share their thoughts in 140 characters; and including me, who argued the first (losing) network neutrality case before the DC Circuit in 2010.

Web and mobile companies will live or die not on the merits of their technology, but on the deals they can strike with AT&T, Verizon, Comcast, and others.
But, in their questions and statements during oral argument, the judges have made clear how they planned to rule — for the phone and cable companies, not for those who use the internet. While the FCC has the power to impose the toothless “no-blocking” rule (originally proposed by AT&T above), it does not (the court will say) have the power to impose the essential “nondiscrimination” rule.

It looks like we’ll end up where AT&T initially began: a false compromise.

The implications of such a decision would be profound. Web and mobile companies will live or die not on the merits of their technology and design, but on the deals they can strike with AT&T, Verizon, Comcast, and others. This means large phone and cable companies will be able to “shakedown” startups and established companies in every sector, requiring payment for reliable service. In fact, during the oral argument in the current case, Verizon’s lawyer said, “I’m authorized to state from my client today that but for these [FCC] rules we would be exploring those types of arrangements.”

Wait, it gets even worse. Pricing isn’t even a necessary forcing factor. Once the court voids the nondiscrimination rule, AT&T, Verizon, and Comcast will be able to deliver some sites and services more quickly and reliably than others for any reason. Whim. Envy. Ignorance. Competition. Vengeance. Whatever. Or, no reason at all.

So what if you’ve got a great new company, an amazing group of founders, a seat in a reputable accelerator program, great investors and mentors. With the permission-based innovation over “our pipes” desired from the likes of Comcast, Verizon and AT&T… there’s no meritocracy here.

Of course, despite everything the judges suggested during the two-hour argument, it’s possible that they offer net neutrality a reprieve. Given how sticky this morass is, there’s one simple way for you to judge the opinion: If the court throws out the non-discrimination rule, permission-less innovation on the internet as we know it is done. If the nondiscrimination rule miraculously survives, then, for now at least, so too will freedom on the internet.

For years, I kept hoping that the President and Congress would do something to rein in the corporate media companies who continue to showcase hatemongering radio and TV commentators, and rake in millions of dollars at the expense of reasoned debate and civil public discourse. I wrote letters about my concerns to my congressional representatives. I blogged about it. I wanted our public officials to take this abuse of free speech on our public airwaves much more seriously.

I wasn’t as worried about President Obama’s safety, because of the fortress-like security apparatus afforded to American commanders-in-chief. No, I had a feeling that the first attempted political assassination of a government official in many years would be on a member of Congress. Now it’s happened. And so many other innocent lives were lost or ruined in the attack.

None of these extremist broadcast commentators told Loughner, or anybody else, to go and massacre people. But they and the companies who employ them have perpetuated an environment where violent rhetoric is deemed an acceptable form of entertainment, where media personalities steer close to or even commit incitement, and where alternative viewpoints are scarce. Unfortunately, our public leaders – Democrats as well as Republicans – have acquiesced to the wishes of Big Media by allowing deregulation and corporate consolidation. Our government has also gotten rid of equal time rules, and declawed the Federal Communications Commission, which is supposed to oversee broadcast outlets and protect the public interest. On top of that, the United States, unlike other Western countries, lacks a robust public broadcast system that can provide an antidote to corporate media’s worst programming. So we see large portions of the population whose only source of news and information comes from extremist radio figures and lightweight local TV news broadcasts. Add to this large-scale ignorance, a toxic brew of massive income inequality, racism and bigotry, and easy access to guns. It took Pima County Sheriff Clarence Dupnik, who oversees Tucson, to finally say to the mainstream what many of us in the media reform movement have been screaming about for years:

“When you look at unbalanced people, how they respond to the vitriol that comes out of certain mouths about tearing down the government,” he said. “The anger, the hatred, the bigotry that goes on this country is getting to be outrageous and unfortunately Arizona has become sort of the capital. We have become the Mecca for prejudice and bigotry.”

…

“It’s the vitriolic rhetoric that we hear day in and day out from people in the radio business and some people in the TV business. People tend to pooh-pooh this business about the vitriol that inflames American public opinion by the people who make a living off of that. That may be free speech but it’s not without consequences.”

Many are calling on the haters to tamp down the vitriol. Interestingly, Roger Ailes, CEO of Fox News, the cable network that is now synonymous with rightwing flamethrowing and propaganda, is asking “both sides” – meaning left and right – to tone it down. Other mainstream media outlets are also continuing to put out this false meme that liberals and conservatives are equally responsible for the venom polluting the public airwaves. Ailes and his ilk know perfectly well that it is conservative leaders, media pundits, TV and radio personalities who are primarily the ones spreading hate speech and violent rhetoric. Liberals just don’t have the kind of money or access to as many broadcast stations as do conservatives. And what liberals have said in public, while provocative, just doesn’t reach the same level of bloodthirstiness that we’ve seen from conservatives.

But the real point here is that no amount of pleading for calm will stop the behavior. There may be a pause for a while, but I doubt it will last. The media conglomerates are just making too much money from hate speech. That has to change. Unless and until laws with teeth are put back on the books to regulate the media companies, the invective will escalate and more tragedies will happen. What should be done?

Break up the media monopolies: There are only a handful of companies that control almost everything Americans see and hear. That means only a handful of executives (typically white and male) are dictating what kind of information is available to an increasingly diverse public. This also means that a handful of executives are using toxic radio and TV personalities to sow divisions among the citizenry just so they can try to sell us their corporate propaganda. That must end. Allowing Comcast and NBC Universal to merge is taking American media in the wrong direction.

Give the FCC and the public more enforcement power: When President Clinton signed the Telecommunications Act in 1996, the interval between renewing broadcast licenses increased from five to eight years. That should be reversed. (FCC Commissioner Michael Copps wants to reduce the period to four) In addition, broadcasters whose media personalities routinely incite violence and threaten people or groups with bodily harm should have their licenses revoked. In addition, it should be just as easy to file a challenge against a station for hate speech as it is for profane speech. We may have free speech rights, but no one has the right to own or broadcast on a radio or TV station. Broadcasting on our limited public airwaves is a privilege, and broadcasters must be held to certain standards.

The United States must implement an independent, 100%-taxpayer-funded public broadcasting system with TV and radio stations available in every community – urban and rural. PBS and NPR, with their paltry taxpayer subsidies and commercial underwriters, just don’t cut it. We need something on par with the BBC. This new public system must have access to frequencies equally as powerful as the ones available to commercial stations. Public broadcasting systems in other Western countries have a much more expansive array of high-quality produced shows featuring culture, politics, science and documentaries. Citizens in countries with robust public broadcasting systems are exposed to a wider variety of political views and are therefore, more informed than Americans. Toxic speech must be counteracted with more diverse and better speech.

All Americans deserve equal access to fast, affordable and high-quality broadband that is free of corporate manipulation and control.

Thanks to our First Amendment, Americans probably enjoy the most permissive free speech rights of any modern democracy. But this right is not absolute. Some are abusing the First Amendment by using the public’s airwaves to stir up hatred and division. They are profiting off the public trough and giving out only garbage in return. Extremist radio and TV commentators are not directly responsible for the political violence plaguing America today, but they have contributed to the creation of an environment of nastiness in our public discourse that can influence disturbed individuals like Jared Loughner. If this extremist speech isn’t soon ostracized from public life in the U.S., the lone, crazed gunman will morph into organized mobs hell bent on murdering political opponents and even committing genocide.

Amid all the uproar last week about the Federal Communication Commission’s new not-so-net neutrality rules, Congress passed important new legislation that will further democratize the airwaves. The Local Community Radio Act will allow thousands of new low power FM stations to be created across the country for use by non-profits and community groups. Once President Obama signs the legislation, supported by Democrats and Republicans, organizations will be able to broadcast news and information of interest to their specific communities.

This law will definitely provide communities a much needed alternative to the cookie-cutter programming and shout fests that characterize much of radio today. Communities will be able to tailor programming to their specific needs and cultural tastes, and won’t just be stuck with shows streaming in from big cities like New York. And the law could also prevent the kind of tragedy that occurred in Minot, MN, in 2002.

On Tuesday, the Federal Communications Commission is set to vote on new rules that critics say could allow media conglomerates to decide whose content gets to be seen on the Internet and whose doesn’t. FCC Chairman Julius Genachowski is said to have the votes he needs to pass net neutrality regulation.

Internet freedom advocates are blasting Genachowski and the Obama administration for reneging on a campaign promise that candidate Obama made, saying he would protect the Internet from corporate meddling. But, the proposed rules – which haven’t been made public – would let telecommunications companies block or slow down Web content accessed through wireless devices, advocates complain. Mobile devices, like smartphones and iPads, are poised to become the dominant medium through which people access the Web.

For many Americans — particularly those who live in rural areas — the future of the Internet lies in mobile services. But the draft Order would effectively permit Internet providers to block lawful content, applications, and devices on mobile Internet connections.

Mobile networks like AT&T and Verizon Wireless would be able to shut off your access to content or applications for any reason. For instance, Verizon could prevent you from accessing Google Maps on your phone, forcing you to use their own mapping program, Verizon Navigator, even if it costs money to use and isn’t nearly as good. Or a mobile provider with a political agenda could prevent you from downloading an app that connects you with the Obama campaign (or, for that matter, a Tea Party group in your area).

It gets worse. The FCC has never before explicitly allowed discrimination on the Internet — but the draft Order takes a step backwards, merely stating that so-called “paid prioritization” (the creation of a “fast lane” for big corporations who can afford to pay for it) is cause for concern.

It sure is — but that’s exactly why the FCC should ban it. Instead, the draft Order would have the effect of actually relaxing restrictions on this kind of discrimination.

Everyone who uses the Internet should make this issue a top priority. I can imagine a world where there is no protection against discrimination on the Internet, where the Web is no longer the dynamic and fascinating medium it is now. A world where people can only get the same old, tired crap offered on television and terrestrial radio. A world where dissent is drowned out or blacked out in favor of corporate propaganda and innovation is squashed in favor of ossification. A world where you may no longer get to read this blog. Hopefully, these new rules can be struck down, which is what an Internet law expert, interviewed below, predicts:

When it comes to average Internet connection speeds, the United States is, well…average. According to a new survey by Akamai Technologies, and reported on the Royal Pingdom blog, the U.S. ranks 12th in Internet speed, behind such countries as Canada, the Czech Republic, Japan and even Romania. The survey ranks the top 50 countries with the most Internet users.

Although the U.S. ranks second in number of users overall (behind #1 China), the country has an average speed of 4.60 megabits per second. South Korea is the overall speed champion, with an average speed of 16.63 megabits per second, but ranking eleventh in number of users. America’s middling speed ranking is rather embarrassing for the country that invented the Internet, and thinks of itself as exceptional in just about everything. Improving Internet connection speed is important if we want to continue to innovate as a country. Hopefully, now that the Federal Communications Commission has completed its national broadband plan earlier this year, America can concentrate on catching up.

When word leaked a few days ago that House Energy and Commerce Chairman Henry Waxman had drafted compromise legislation that would effectively neuter strong net neutrality rules, media reformers erupted in protest. Waxman has been a strong proponent of net neutrality, and had reaffirmed his support in a meeting with citizens and members of L.A. Media Reform and Free Press earlier this month. So the news came as a shock. Or perhaps it shouldn’t have been. Lobbyists from the telecommunications industry have literally been inundating members of Congress like flies swarming a piece of meat. I’m quite sure they were breathing down Waxman’s back.

Theories abound as to why Waxman decided to cut a deal with the telecoms – one possible reason being resolving the issue in the best way possible in case the GOP takes over the House in November. But, no matter. The Washington Post reported today that the GOP shot down the bill anyway, and Waxman is urging the Federal Communications Commission to reassert its authority over broadband. Waxman is still pinning his hopes on a bipartisan approach to this issue, but he realizes it probably ain’t likely.

The fight over keeping corporations from treating the Internet like their own personal fiefdom illustrates the sorry state of America’s electoral system. The fact that Waxman feels that he even has to compromise with a bunch of amoral profitmongers, who, I believe, wouldn’t hesitate to put Web users in digital straitjackets if that will pad their bottom line, shows that the needs of ordinary Americans count for less and less in Congress. If we Americans want different behavior from our political representatives, we’re going to have to support politicians who are going to work to take away corporations’ ability to meddle in our democracy.

I wonder if the Democratic Party leadership realizes how a free and open Internet is the only thing right now that is keeping the party competitive with the Republicans in the wake of Citizens United, the Supreme Court case that practically handed the electoral store to the monied interests. It was the blogosphere that enabled the Democrats to retake Congress in 2006, and it was the legions of small donors who used the Web to help put Barack Obama in the White House.

The corporate media cabal made up of network and cable television, print newspapers and talk radio simply does not put the progressive point of view on an even playing field with the conservative one. The Internet is the only place one can turn to for an alternative to the conventional, corporate-dominated Beltway thinking of the traditional media.

Email press@google.com and tell the people at google that you have stopped using the google search engine and all other google products until Google decides to break the deal with verizon to end net neutrality.

A funny essay by humorist and journalist Tina Dupuy about Net Neutrality:

The term “net neutrality” has the magical property of making most people’s eyes glaze over. First, it sounds like a gambling term. “I have a system and net neutrality – I can’t lose!” Second, no one using the Internet calls it “the net” anymore. Just like no one in San Francisco calls it “Frisco.” So the term “net neutrality” either sounds super techie and over-your-head, or more dated than the 1995 Sandra Bullock movie called…The Net.

The concept of Net Neutrality is simple: all content should be treated equally. The Internet should be, as it has been, on a virtual level playing field.

Google and Verizon announced at the beginning of August their agreement for an “Open Internet.” In their statement the FCC will continue to lack the power to enforce an open Internet, and it excludes wireless broadband from transparency, citing proprietary concerns. This is worrisome since wireless broadband is the future of the Internet. Plus, in order to ensure “openness,” wireless or not, the Internet should be regulated like any other public utility.

So as soon as the word “regulation” is uttered, a Frankenstein monster of a faux populist movement arises to dispute and/or cloud the issue. With corporate sponsorship they’ve become a loud lobbying spectacle for business interests. Cleverly they use pro-working people language, and often working people themselves, to sell policies of freedom for corporations. Yes, the Tea Party or the Grand Old Party on caffeine, is (of course) against Net Neutrality.

The Tea Party and its coalition of “grassroots” think tanks want corporations to be in control of the Internet so it will “stay open.” In a signed letter sent to the FCC and the media the day after the Google/Verizon agreement was announced, the Tea Party groups’ statement added that government regulation, “could also remove the ability for parents and ISPs to prevent inappropriate material from entering the home.”

Catch that? Let business do what it wants or you won’t be able to protect your children from smut. It’s the most vulgar thing I’ve ever heard. Horribly untrue. And a cynical attempt at fear-mongering. “Your children are at risk!” Deplorable.

Government regulation is always annoying – unless we can’t swim in the Gulf of Mexico, or eat eggs, spinach, beef or peanut butter. But wait – annoying to whom? Government regulation irks corporations. For those of us who drive the cars, eat the food or take the medications made by corporations, government regulations are in the most basic way – lifesavers.

Personally, I would like a government bureaucrat between me and Salmonella.

The Tea Party would have opposed the National Parks system. Sectioning off millions of acres of land which otherwise could be privately developed is a job killer! Letting places like Yosemite Valley just sit there without allowing business to “improve the experience” is an affront to freedom! Uncle Sam’s telling Americans where they can and can’t build is government overreach! The whole scheme will raise your taxes! Taxes – and they’ll take your guns!

But no, Republican leaders like Abraham Lincoln and Teddy Roosevelt saw how these parks should be nationalized, saved for future generations to have and enjoy. Lincoln did coin the phrase “for the people, by the people,” the perfect slogan for a walk through a government-regulated and, therefore, pristine forest.

And our more perfect union needs to ensure that the Internet can be open and indifferent to content (even if you disagree with said content). Congress didn’t just sit on their hands and hope that just because no one had yet developed Yellowstone it wasn’t at risk of such a fate. No, they acted. They protected it. Yellowstone is still there for all of us to enjoy. It’s ours.

What needs to happen? Earlier this year, the U.S Court of Appeals for the District of Columbia handed down the Comcast Decision stating under current law, the FCC doesn’t have the authority to regulate equality of content. This means the law must be changed.

Congressman Henry Waxman, chairman of the Committee on Energy and Commerce that oversees the FCC, said he is for Net Neutrality. Waxman said any bill about the issue would have to come out of his committee. What’s taking so long? The hold up is that the term “Net Neutrality” sounds like a fishing ordinance instead of what Senator Al Franken describes as “the free speech issue of our time.”

Bring ye all the tithes into the storehouse and prove me now herewith saith the Lord of hosts, if I will not open you the windows of heaven and pour you out a blessing that there shall not be room enough to receive it.- Malachi 3:10-12

When a group of ordinary citizens go together to lobby a lawmaker in his or her home district, that’s always a big deal. Visits like these should be done frequently, because corporate shills are pressuring congresspeople all the time. Repeated visits, phone calls and letters are the weapons we have to counteract them.

Now that Google and Verizon have pretty much kicked open the door toward corporate control of the Internet, the need for Congress to act is all the more urgent. Aparna Sridhar, policy counsel for Free Press, explained to Waxman what the three most troubling concerns are to net neutrality advocates: 1) that the big telecommunications companies’ opposition to net neutrality has become more entrenched, 2) that there is increasing desire for the telecom industry to write its own rules, and 3) that carriers are using a recent unfavorable court decision against the Federal Communications Commission as leverage to get what they want.

Each person in our group then expressed to Waxman why having a free, open and non-discriminatory Internet is so important in his or her life. For example, Waxman constituent and progressive activist Lauren Steiner spoke about her career in local cable television, specifically public access. Steiner explained how public access was the “first electronic soapbox,” which enabled anyone with an opinion to express themselves without the filter of an editor or having to put up a lot of money to own a station. She said that now in an era where equal time rules and the Fairness Doctrine have long since been eliminated, the Internet is the only democratic media outlet for people.

“If we lose net neutrality, our democracy will suffer irreparable harm” said Steiner, who set up and facilitated the meeting with Waxman.

Others in the group talked about the importance of net neutrality to keeping the public informed about election fraud, keeping people civically engaged, and enabling writers and musicians to create their works openly and without interference. Concerns about censorship, media consolidation and no longer having an even electoral playing field were also expressed. Writer, musician and activist Brad Parker stressed that the Internet is a public utility like interstate highways, and that without net neutrality, it will be harder for entrepreneurs to create new businesses.

Sridhar asked Waxman if he would lend his stature as chairman of House Energy & Commerce to a net neutrality bill that would contain meaningful enforcement mechanisms, as well as a complete ban on making content providers pay for priority status on the Web. Although Waxman re-affirmed his support for net neutrality, he did not say he would sponsor a separate bill to the Markey legislation.

Waxman said he wants the FCC to be able to reclassify broadband as a “telephone service” subject to more regulation, but that the court decision has complicated matters. The Bush-era FCC had changed broadband classification to a looser regulated “information service.” Waxman said there’s not enough support right now in Congress to pressure the FCC to do the reclassification. He suggested that net neutrality supporters lobby Republicans and those conservative Democrats who are opposed to any kind of legislation. Waxman added that what would help is getting conservative groups who do favor net neutrality, such as the Christian Coalition, to lobby Republicans.

It’s terrific that Waxman remains on the right side of this issue. For those of us hoping that he would use his position to make net neutrality a higher priority in the House, we were disappointed. Although the Markey bill is a good one, it’s currently stalled. But Waxman is right. Activists need to start putting the heat on those members of Congress who are obstructing progress on net neutrality. These particular lawmakers and their constituents need to be educated as to how a free and open Internet would benefit them, the economy and our society. And it wouldn’t hurt of course to let the opposing lawmakers’ constituents know just how much money their representatives are taking from the telecoms.